Context:

This editorial is based on the news “The Speaker’s court: On the Maharashtra Assembly Speaker’s ruling” which was published in The hindu. The Maharashtra Assembly Speaker has recently ruled that the faction led by Chief Minister Eknath Shinde was the “real Shiv Sena” when the rival groups emerged on June 21, 2022.

Maharashtra Speaker Upholds Shinde Faction Leadership, Rejects Anti-Defection Petitions

• Speaker’s Verdict: According to the speaker, the former Chief Minister Uddhav Thackeray had no authority to remove Eknath Shinde from the party leadership.
• Rejected Petitions: The speaker dismissed petitions filed by the Uddhav Thackeray faction seeking the disqualification of members from the Shinde faction under the anti-defection.

About Defection: 10th Schedule of the Constitution

• Defection: Under the 10th Schedule of the Constitution, it refers to the act of a legislator changing his/her political party after winning an election. 
• Punishment for Defection: Legislators who have defected from their party are disqualified from their seats under the 10th Schedule. 
• Constitution (52nd Amendment) Act, 1985: The Constitution of India was amended by the Constitution (52nd Amendment) Act, 1985 to include the 10th Schedule to prevent defections and eliminate potential political corruption. 
  • In 1967, a Haryana-based MLA changed his party 3 times a day, giving birth to the popular phrase ‘Aaya Ram, Gaya Ram’. 

Grounds, Evolution, and Judicial Scrutiny of Disqualification under the 10th Schedule

• Ground for Disqualification: The 10th Schedule provides two grounds for disqualification:

  • If the member voluntarily gives up their membership of a political party.
  • If a member abstains from voting or votes against their party’s directions without the party’s consent. 
    • By 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’. However, in the 91st Constitutional Amendment Act, 2003, this was removed and now at least two-thirds of the members of a party are required for merger.
• Power to Disqualify: It is decided by the Chairman in the case of the legislative council and the Speaker, in the case of legislative assembly (and not by the Governor).
• Disqualification under Judicial Review: In 1992, the SC in Kihoto Hollohan vs Zachillhu and Others ruled that the decision of the Chairman/Speaker is subject to judicial review.

Challenges in Anti-Defection Laws: Speaker’s Role, Judicial Dilemmas, and Legislative Impacts

• Speaker’s Role: The Speaker is usually a ruling party member, and there have been concerns about impartiality. 
• Court’s Intervention: In some cases, the Court’s Intervention can create confusion as the decision-making power is vested in the Speaker initially, but judicial intervention is also possible.
• Loopholes in the Law: The Anti-Defection Law has certain loopholes that can be exploited. 
  • For instance, in March 2020, due to the resignation of more than 20 sitting MLAs of the Indian National Congress party from the state’s Legislative Assembly led to the fall of the government. 
• Impact on Decisions: During a long disqualification proceedings, the questioned legislator may continue to participate in the proceedings and vote, potentially influencing decisions. 

Anti-Defection Laws & 10th Schedule: Proposals for Neutrality, Judicial Oversight, and Ethical Governance

• Ensuring Speaker’s Neutrality: By involving a more transparent and consensus-based process for selecting the Speaker to enhance the perception of neutrality in disqualification proceedings.
• Deciding Power should be Given to Other Authorities: Dinesh Goswami Committee (1990) suggested that the power of deciding the legal issue of disqualification should be with the President or the Governor shall act on the advice of the Election Commission.
• • Further, an advocate, Arvind P Datar, suggested that the proceedings for anti-defection should be decided by the dedicated judge/bench in the respective assigned High Court.
• Review and Amend the Anti-Defection Law: To identify and rectify loopholes. 
  • For Example, Dinesh Goswami Committee (1990) recommended limiting disqualification provisions to cases of voluntarily giving up membership of the political party, voting or abstention from voting by a member contrary to the party direction or whip only in respect of a motion of vote of confidence or a motion amounting to no-confidence or Money Bill or motion of vote of thanks to the President’s address.
• Strengthen Ethics Committees: Empower these committees within legislative assemblies which can play a proactive role in scrutinising cases and thereby expediting the process.
  • Barring Defectors from holding Public Office: With invalidation of their votes may help reinforce public ethics as recommended by the Constitution Review Commission (2002).